Raya v. Maryatt Industries

• Decision Date: 26 July 1993
• Docket Number: No. C-88-4276 MHP.,C-88-4276 MHP.
• Citation: 829 F. Supp. 1169
• Court: U.S. District Court — Northern District of California
• Parties: Dolores RAYA, Plaintiff, v. MARYATT INDUSTRIES and Gregory Cornell, Defendants.

829 F. Supp. 1169

Dolores RAYA, Plaintiff, v. MARYATT INDUSTRIES and Gregory Cornell, Defendants.

No. C-88-4276 MHP.

United States District Court, N.D. California.

July 26, 1993.

MEMORANDUM AND ORDER

PATEL, District Judge.

INTRODUCTION

Plaintiff Dolores Raya's motion for leave to amend her complaint was heard before the late Judge Robert F. Peckham on December 21, 1992. Raya seeks to amend her complaint to substitute a claim under the Americans with Disabilities Act (ADA) for the disability discrimination claim set forth in the original and amended complaints. Raya also requests a jury trial under Rule 39(b). Having considered the submissions and arguments of the parties, and for the following reasons, the court DENIES the motion for leave to amend the complaint.

BACKGROUND

Raya filed her original complaint in September 1988 in California state court. The original complaint alleged 1) retaliation, 2) physical handicap discrimination in violation of California Government Code § 12940, 3) breach of contract, 4) intentional infliction of emotional distress, 5) specific performance, and 6) tortious breach of the covenant of good faith and fair dealing. The case was removed to this court shortly thereafter. In September 1989, the court granted summary judgment for defendants on all six of the claims. In August 1991, the Ninth Circuit reversed as to the retaliation and physical handicap discrimination claims. Thus, those two claims are now the only remaining claims in plaintiff's original complaint.

Raya was represented by counsel from October 1989 to September 1991 during her appeal to the Ninth Circuit. After that time, a non-lawyer cousin, Rudolfo Velasquez, aided her. After several major discovery disputes, this court appointed counsel to represent Raya. (Order of June 25, 1992.)

Raya's new counsel, appointed in October 1992, filed a motion for leave to amend the complaint on November 9, 1992. The amended complaint requests a trial by jury and the use of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., for the disability discrimination claim in the original and amended complaints.

DISCUSSION

Defendants oppose plaintiff's motion on three grounds: 1) plaintiff's motion is procedurally defective; 2) plaintiff's attempt to add a claim under the ADA should be denied because the ADA does not apply retroactively, the amendment was unduly delayed, and the amendment would cause undue prejudice; and 3) plaintiff has waived her right to a jury trial.

A. Procedural Objections

Defendants contend that plaintiff failed to file a copy of the proposed amended complaint. On October 19 and November 10, 1992, plaintiff served defendants' counsel with a copy of the proposed amended complaint, which plaintiff lodged with the court on October 14 and November 10. Neither the Local Rules for the Northern District of California nor the Federal Rules of Civil Procedure require a party to formally file a proposed pleading. In fact, it is more proper to lodge a proposed filing with the court until leave is granted to actually file the document. Thus, counsel for Raya did not err in failing to formally file the complaint.

Defendants also object that plaintiff's notice of the motion fails to "state with particularity the grounds therefor, and ... the relief or order sought" in accordance with Fed.R.Civ.P. 7(b). While it would have been preferable for plaintiff to have specified the basis for her amendment in addition to the relief requested, this error is not a ground for denying the motion.

B. Request to Add ADA Claim

Plaintiff wishes to amend her complaint to substitute a claim under the ADA for the disability discrimination claim in her original and amended complaints. Leave of court to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Federal Rules favor granting leave to amend, according to the Supreme Court:

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be freely given.

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Thus, defendants need to show that the amendment is futile, that plaintiff has unduly delayed the amendment, or that the amendment will cause undue prejudice.

1. Retroactivity of the ADA

Title I of the ADA prohibits discrimination by certain private employers against individuals with disabilities. 42 U.S.C. § 12112(a). The remedies available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., are available to those claiming employment discrimination under the ADA. 42 U.S.C. § 12117(a). Additionally, the Civil Rights Act of 1991 allows plaintiffs to claim compensatory and punitive damages for discrimination under the ADA, just as they can for violations of Title VII. 42 U.S.C. § 1981a(a)(2) & (b). The ADA was enacted on July 26, 1990, but its provisions relating to employment discrimination did not take effect until July 26, 1992. See Pub.L. No. 101-336, Title I, § 108 (codified as note to 42 U.S.C.A. §§ 12111-12117) ("Effective Date: This title shall become effective 24 months after the date of enactment").

Because the alleged discrimination in this case took place in 1987, well before the 1992 effective date of the ADA, the ADA must apply retroactively in order for plaintiff to state a claim for relief. The retroactivity of the ADA is properly before the court on a motion for leave to amend the complaint, as the parties have addressed it and the issue pertains to the possible futility of the motion to amend. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230.

It is important to note that this motion is about the retroactivity of the ADA statute itself. Only if the substantive statute is retroactive does the court reach the issue of retroactivity of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, which contains the remedies for violations of the ADA. While this district has held that section 102(a) of the 1991 Act, which governs the remedies for disability discrimination, applies retroactively in a case involving disability discrimination, the court did not clarify whether plaintiff had brought her claim under the ADA or the Rehabilitation Act of 1973. Nor did the court address whether the substantive provisions of the ADA applied retroactively. See Lee v. Sullivan, 787 F.Supp. 921, 933 n. 15 (N.D.Cal.1992). We keep in mind that the ADA is the substantive law creating rights and duties; the 1991 Act merely amends the ADA and provides the remedies.

While not specifically analyzing the retroactivity of the ADA itself, some courts have relied on the statute's delayed effective date to hold that the ADA does not apply to claims which arose before the effective date. See Post v. Kansas Gas & Elec. Co., 1993 WL 246087, at *2 (D.Kan. June 14, 1993); Barraclough v. ADP Automotive Claims Servs. Inc., 818 F.Supp. 1310, 1311-12 (N.D.Cal.1993); Binder v. Emerson Elec. Co., 1992 WL 442111, at *6, 8 Indiv.Empl.Rts.Cas. (BNA) 114 (E.D.Mo. Sept. 28, 1992) (all involving employment discrimination provisions of Title I); cf. Rothman v. Emory Univ., 828 F.Supp. 537, 541 (N.D.Ill. 1993) (Title III); Coleman v. Zatechka, 824 F.Supp. 1360, 1366 n. 14 (D.Neb.1993) (Title II); Dean v. Thompson, 1993 WL 169734 *4 (N.D.Ill. May 6, 1993) (Title II). But see Clarkson v. Coughlin, 145 F.R.D. 339, 348 (S.D.N.Y.1993) (allowing leave to amend complaint to add Title II ADA claim which arose before effective date).

The fact that the Act has a delayed effective date suggests that Congress did not intend the Act to apply retroactively, but it does not entirely dispose of the substantive retroactivity question. See Ayala-Chavez v. U.S. I.N.S., 945 F.2d 288, 291, n. 5 (9th Cir.1991), overruled on other grounds, Pub.L. No. 102-232, 105 Stat. 1733, § 306(a)(11). The court must therefore examine the general precedent governing retroactive application of statutes.

The Supreme Court has issued seemingly inconsistent presumptions regarding retroactive application of statutes. In Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), the Court held that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." The Court directed lower courts to consider the following factors in determining whether "manifest injustice" will result: 1) the nature and identity of the parties (private parties making retroactive application less likely), 2) the nature of their rights (whether retroactive application would deprive a party of a matured or unconditional right), and 3) the nature of the impact of the change in the law upon those rights (whether the change would impose new and unanticipated obligations on a party without notice or opportunity to be heard). Id. at 717-21, 94 S.Ct. at 2019-21.

But in Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), the Court stated: "Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." The Court concluded that a government agency had no authority to promulgate retroactive Medicare regulations. A year later, the Court noted that the Bradley and Bowen cases were in "apparent tension," but it declined to resolve this conflict. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990). "Under either view, where the congressional intent is clear, it governs." Id.

The Ninth...